VA - personal property

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Author:
richardlpeterson
ID:
126360
Filename:
VA - personal property
Updated:
2012-01-07 13:24:39
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VA - Personal Property
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  1. Personal Property
    Four Key Topics
    • 1. Found property
    • 2. Gifts
    • 3. Bailments
    • 4. Common carriers
  2. Found Property
    • 1. Abandoned Property
    • 2. Lost Property
    • 3. Mislaid Property
  3. Abandoned Property - Test
    • 1. Is it abandoned?
    • owner has voluntarily given up possession with the intent to give up title and control
    • 2. If it is, has someone acquired rights in it?
    • -finder acquires rights if he has possession with the intent to assert title and control
  4. Lost & Mislaid Property
    Form of Question
    • two person fighting over title
    • 1. The person who found the property, or finder
    • 2. The person on whose land the chattel was found, the land owner or occupier
    • But the true owner will not be present
  5. Lost Property
    • Found property where the owner took no voluntary affirmative act in placing the property where it is found; that is, accidental & involuntary
    • Finder wins!
  6. Mislaid Property
    • Found property where the owner has taken some voluntary affirmative act in placing property
    • Owner/Occupier wins!
  7. Exceptions to rule for lost property
    • 1. if the finder of lost property is trespasser, the owner/occupier of premises will prevail
    • 2. the master prevails over the servant who finds
    • 3. (most likely) if lost property is found in a highly private locus (home/office), owner/occupier will prevail over finder
  8. Gifts
    Two Kinds
    • 1. gifts inter-vivos
    • 2. gifts causa mortis (in contemplation of death)
  9. Gifts Inter-Vivos
    Requirements
    • 1. donative intent
    • 2. a valid delivery (most important)
    • 3. a valid acceptance
  10. Gifts Inter-Vivos
    Donative Intent
    • 1. donative intent is much easier to find when the donor and donee are closely related
    • 2. donative intent means the intent to pass title now (not just possession)
  11. Gifts Inter-Vivos
    Valid Acceptance
    • -Acceptance is implied by silence.
    • -The only way there is no acceptance is if you have explicit rejection by words or deeds
  12. Gifts Inter-Vivos
    Valid Delivery
    • Easy:
    • 1. Handing something to someone
    • 2. donee is already in possession when gift is attempted
    • 3. donor hands over something representative of the object of the gift
    • Hard:
    • 1. Donor gives check to donee; delivery at time of cashing
    • 2. Donor hands donee a check made out to donor by 3d party; valid delivery
    • 3. Donor hands donee a stock certificate; valid delivery
    • 4. Donor uses a middle person to give gift
    • -donee's agent = valid delivery when given to agent
    • -donor's agent = valid delivery when given to donee
    • -when in doubt, construe as donor's agent (unless donee is a minor)
  13. Gifts Causa Mortis
    General Elements
    • 1. Nature of the peril: No gift causa mortis will be allowed unless the donor making the gift is facing a great peril
    • -To have a valid gift causa mortis the peril the donor faces must be a fair degree of certainty or likelihood of death that is imminent and likely to occur
    • 2. revocation
    • -Three ways:
    • -1. donor can simply revoke any time
    • -2. donee predeceases donor
    • -3. donor recovers
  14. Bailments
    Is it a bailment?
    • -when the alleged bailee has taken over custody/possession of a chattel with intent to serve as a bailee
    • -Situations:
    • --1. safe deposits boxes are generally regarded as a bailment (regardless of knowledge of contents)
    • --2. parking lots/garagees: if gave keys, bailed; if keeps keys, not bailed
  15. Bailment
    If bailment, what is the liability of the bailee if the chattel is damaged, destroyed or missing?
    • Standard of care:
    • 1. for sole benefit of bailor = bailee liable for gross negligence
    • 2. for sole benefit of bailee = bailee liable for slight negligence
    • 3. mutual benefit situation = bailee liable for ordinary care
    • Modern Trend is to apply ordinary care in all bailments
    • Strict Liability
    • 1. unauthorized use
    • 2. misdelivery (even if forged instrument)
    • exception: misdelivery of a vehicle in a parking lot to someone who shows up with a forged claim check bring NO strict liability
    • Exculpatory clauses:
    • -bailee can limit only for bailee's ordinary negligence (effective notice)
  16. Bailment
    Bankruptcy
    Items on consignment are bailed. Bailed items can't be included in a bankruptcy estate of bailee.
  17. Common Carriers
    • Definition: one who undertakes for hire to transport persons or goods from place to place
    • Elements:
    • 1. must hold out to perform the service to all who apply
    • 2. the carriage must be for hire
    • 3. the service must be for carriage (transport)
  18. Common Carrier
    Liability
    • Common carrier is considered an insurer of the goods given by the shipper and is liable for any damage or loss.
    • Exceptions:
    • 1. where the goods are damaged or destroyed by an act of nature
    • 2. where the goods are damaged or destroyed by faulty packaging by the shipper
    • 3. where the goods are damaged or destroyed because the goods are perishable and nature took its course

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